Ex Parte Shah

Board of Patent Appeals and Interferences

Sep 23, 2010

10945509 (B.P.A.I. Sep. 23, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/945,509 09/20/2004 Veeral Prabodhachandra Shah VRTS0877 6484
44743 7590 09/24/2010
RAYMOND R. MOSER JR., ESQ.
MOSER IP LAW GROUP/SYMANTEC CORPORATION
1030 BROAD STREET
SUITE 203
SHREWSBURY, NJ 07702
EXAMINER
DUNCAN, MARC M
ART UNIT PAPER NUMBER
2113
MAIL DATE DELIVERY MODE
09/24/2010 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte VEERAL PRABODHACHANDRA SHAH
________________

Appeal 2009-006625
Application 10/945,509
Technology Center 2100
________________

Before JOSEPH L. DIXON, CAROLYN D. THOMAS, and
STEPHEN C. SIU, Administrative Patent Judges.

SIU, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-006625
Application 10/945,509

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STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-11. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Invention
The invention relates to detecting the failure of an application process
(Spec. 2, ¶ [0001]).
Claim 1 is illustrative:
1. A method for detecting an application failure,
comprising:
opening a process membership manager with a first
process, said first process causing an instance indicia that
reflects a number of processes using said process
membership manager to be assigned a first predefined
value;
forking said first process to create a second process, said
second process causing said instance indicia to change to
a second predefined value;
changing said second predefined value in the event said
second process fails; and
sending a message to said process membership manager
in response to said second predefined value having
changed.
Reference
The Examiner relies on the following reference as evidence in support
of the rejection:
Garcia 6,883,170 B1 Apr. 19, 2005
(filed Aug. 30, 2000)
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Rejection
Claims 1-11 are rejected under 35 U.S.C. § 102(e) as being
anticipated by Garcia.
ISSUES
Issue 1
Appellant submits “that a list of processes is distinctly different from
a value reflecting the number of processes on such a list” (App. Br. 8).
Appellant further argues that “Garcia does not teach or suggest that his
process list 95 has a particular value, only that there are some number of
processes listed in the process list 95” (App. Br. 9-10).
Issue: Did the Examiner err in finding that Garcia teaches an instance
indicia that reflects a number of processes?
Issue 2
Appellant argues that Garcia “do[es] not disclose that the broadcasted
status information is in the form of a close entry point call” (App. Br. 9).
Issue: Did the Examiner err in finding that Garcia teaches a close
entry point call?
FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence:
1. Garcia discloses “a watchdog object 94 that maintains a process
list 95 of all processes 90 performed by application objects 91
created by the executive object 84” (col. 7, ll. 65-67).
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Application 10/945,509

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2. Garcia discloses that “[t]he executive object [8]4 is shown to
broadcast process status information to a broadcast server object
100” (col. 8, ll. 17-18).
3. Garcia discloses that “the executive object 84 broadcasts (e.g., via
the broadcast server object 100 and a broadcast client object) that
the relevant process 90 has exited” (col. 10, ll. 12-14).
4. The Specification discloses that “the operating system 118
performs a close entry point call (i.e., a message) and forwards it to
the PMM [process membership manager] 122. This close entry
point call informs the PMM 122 of the application process failure”
(p. 8, ¶ [0021]).
PRINCIPLES OF LAW
Claim interpretation
“In the patentability context, claims are to be given their broadest
reasonable interpretations. . . . [L]imitations are not to be read into the
claims from the specification.” In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993) (citations omitted).
Anticipation
In rejecting claims under 35 U.S.C. § 102, “[a] single prior art
reference that discloses, either expressly or inherently, each limitation of a
claim invalidates that claim by anticipation.” Perricone v. Medicis Pharm.
Corp., 432 F.3d 1368, 1375 (Fed. Cir. 2005) (citation omitted).
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ANALYSIS
Issue 1
Appellant argues that the Examiner erroneously relies on a process list
as teaching instance indicia. Based on Appellant’s arguments in the Appeal
Brief, we will decide the appeal with respect to issue 1 on the basis of
claim 1. See 37 C.F.R. § 41.37(c)(1)(vii).
Appellant submits that “adding or removing listed processes from [a
list of processes] is distinctly different from changing a particular value of
an instance indicia” (App. Br. 8). Appellant argues that “[f]or example, a
process list containing two listed processes is distinctly different from an
indicia set to the numerical value of 2” (id.). Yet, the process list in
Appellant’s example has a cardinality with the numerical value of two,
which reflects the number of processes listed.
The claim language does not specify how the instance indicia value is
stored and retrieved. Thus, we find that the cardinality of a process list falls
within a reasonably broad meaning of instance indicia value. Garcia teaches
a process list (FF 1). Therefore, Garcia teaches an instance indicia (the
cardinality) that reflects a number of processes (of a list of processes).
Appellant argues, regarding the rejection of claims 3 and 9, that “[a]
list of some number of processes is distinctly different from a usage count
being set to such a number” (App. Br. 10). This argument leverages the
same rationale Appellant uses in challenging the Examiner’s rejection of
claims 1 and 7. Therefore, claims 3 and 9 fall therewith.
For at least these reasons, we are not persuaded of error with respect
to this issue in the Examiner’s 35 U.S.C. § 102(e) rejections of claims 1-11.
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Issue 2
Appellant challenges the Examiner’s finding that Garcia teaches a
close entry point call. Based on Appellant’s arguments in the Appeal Brief,
we will decide the appeal with respect to issue 2 on the basis of claim 2. See
37 C.F.R. § 41.37(c)(1)(vii).
Appellant submits that “[a] close entry point call is understood by one
of ordinary skill in the art to close a resource (i.e., to give up access to the
resource)” (Reply Br. 2-3). Yet, the Specification also discloses a close
entry point call that is a message that informs of an application process
failure (i.e., that the application process exited) (FF 4).
Garcia teaches an executive object that broadcasts process status
information (FF 2). Garcia further teaches the executive object broadcasting
that a relevant process has exited (FF 3). Therefore, Garcia teaches a
message (broadcast process status information) that informs of an
application process failure (for a process that has exited).
For at least these reasons, we are not persuaded of error with respect
to this issue in the Examiner’s 35 U.S.C. § 102(e) rejections of claims 2
and 8.
CONCLUSIONS OF LAW
Based on the findings of facts and analysis above, we are not
persuaded of error in the Examiner’s findings:
1. that Garcia teaches an instance indicia that reflects a number of
processes (issue 1) and
2. that Garcia teaches a close entry point call (issue 2).

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Application 10/945,509

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DECISION
We affirm the Examiner’s decision rejecting claims 1-11 under 35
U.S.C. § 102(e).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

saw

RAYMOND R. MOSER JR., ESQ.
MOSER IP LAW GROUP/SYMANTEC CORPORATION
1030 BROAD STREET
SUITE 203
SHREWSBURY, NJ 07702